Urso v. Grafton Correctional Institution
Filing
18
Memorandum of Opinion and Order Petitioner's Motion for the Substitution of Parties (ECF No. 13 ) is granted to substitute LaShann Eppinger, Warden as the respondent. Petitioner's Objections (ECF No. 14 ) are overruled and the Re port and Recommendation (ECF No. 11 ) of the Magistrate Judge is adopted. Keith Urso's Petition for a Writ of Habeas Corpus is denied. Petitioner's Request for a Certificate of Appealablity (ECF No. 15 ) is denied. The Court certifies, p ursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Judge Benita Y. Pearson on 9/9/2015. (JLG)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KEITH URSO,
Petitioner,
v.
LaSHANN EPPINGER, Warden,
Respondent.
)
)
)
)
)
)
)
)
)
CASE NO. 4:13CV0723
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF Nos. 13, 14, and 15]
Pro Se Petitioner Keith Urso filed a Petition for a Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 (ECF No. 1), alleging three grounds for relief which challenge the constitutional
sufficiency of his conviction in Trumbull County, Ohio Court of Common Pleas Case No. 2010
CR 00107. The case was referred to Magistrate Judge Kenneth S. McHargh for a Report and
Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.2(b)(2). The magistrate judge
subsequently issued a Report and Recommendation (ECF No. 11). In his Report, the magistrate
judge recommends that the Court deny the petition because Petitioner has failed to demonstrate
that the state court decision on his claims was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme Court of the United
States. Petitioner filed timely Objections to the Magistrate Judge’s Report (ECF No. 14). The
Court, after reviewing the objections, hereby adopts the Report and denies the Petition.
(4:13CV0723)
Petitioner also filed a Motion for the Substitution of Parties (ECF No. 13) and a Request
for a Certificate of Appealablity (ECF No. 15). The Court has been advised, having reviewed the
record, the parties’ briefs, and the applicable law.
I. Facts
In February 2010, Petitioner was indicted on two counts of operating a vehicle while
under the influence of alcohol (“OVI”). In Count One, he was charged with operating a motor
vehicle while under the influence of alcohol, having previously been convicted of a felony OVI.
In Count Two, he was charged with operating a motor vehicle with a prohibited blood-alcohol
concentration of .286, having previously been convicted of a felony OVI. Each count also
contained a specification that Petitioner had previously been convicted of five or more OVI
offenses in the last 20 years ECF No. 7-1 at PageID #: 89-93. The case proceeded to a jury trial
after which the jury found Petitioner guilty of OVI on both counts of the indictment, each with a
prior felony OVI conviction. The jury also found Petitioner guilty of the repeat-OVI-offender
specification attached to each count. In January 2011, Petitioner was sentenced on both counts to
five years in prison and to five years on the repeat-OVI-offender specification, the two terms to
be served consecutively. The trial court then merged both counts and specifications, for a total of
ten years in prison. The court also revoked and permanently suspended Petitioner’s driver’s
license. ECF No. 7-1 at PageID #: 56-59.
Prior to sentencing, Petitioner had filed a Motion for New Trial (ECF No. 7-1 at PageID
#: 141-43). The motion was denied (ECF No. 7-1 at PageID #: 148-49), but the denial itself was
not presented as error on direct appeal.
2
(4:13CV0723)
In September 2011, the Eleventh District Court of Appeals of Ohio affirmed Petitioner’s
convictions. State v. Urso, 195 Ohio App.3d 665 (2011) (ECF No. 7-1 at PageID #: 60-88). In
February 2012, the Ohio Supreme Court dismissed the appeal as not involving any substantial
constitutional question, State v. Urso, 131 Ohio St.3d 1440 (2012) (ECF No. 7-1 at PageID #:
302), and Petitioner did not further appeal to the United States Supreme Court.
On March 25, 2013,1 Petitioner filed the instant Petition for a Writ of Habeas Corpus
(ECF No. 1). It was received by the Court on April 2, 2013.
II. Standard of Review for a Magistrate Judge’s Report and Recommendation
When objections have been made to the Magistrate Judge’s Report and Recommendation,
the District Court standard of review is de novo. Fed. R. Civ. 72(b)(3).
A district judge:
must determine de novo any part of the magistrate judge’s disposition that has
been properly objected to. The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.
Id.
Accordingly, this Court has conducted a de novo review of the portions of the Magistrate
Judge’s Report to which Petitioner has properly objected.
1
Under Sixth Circuit precedent, the petition is deemed filed when handed to
prison authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th
Cir. 2002). Petitioner dated his petition on March 25, 2013. See Brand v. Motley, 526
F.3d 921, 925 (6th Cir. 2008) (holding that the date the prisoner signs the document is
deemed under Sixth Circuit law to be the date of handing to officials) (citing Goins v.
Saunders, 206 Fed.Appx. 497, 498 n. 1 (6th Cir. 2006) (per curiam)).
3
(4:13CV0723)
III. Law & Analysis
A. Petitioner’s Motion for the Substitution of Parties (ECF No. 13)
Grafton Correctional Institution (“GCI”) was named as the original respondent. LaShann
Eppinger is now the warden at GCI. See Ohio Department of Rehabilitation and Correction,
http://www.drc.ohio.gov/Public/gci.htm (last visited Sept. 4, 2015). Petitioner’s Motion for the
Substitution of Parties (ECF No. 13) is granted to substitute LaShann Eppinger, Warden as the
respondent.
B. Petitioner has failed to demonstrate that the state court decision on his claims
was contrary to, or involved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the United States
Pursuant to 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), a writ of habeas corpus may not be granted unless the state
court proceedings:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2); see also Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000), cert.
denied, 532 U.S. 947 (2001). The task of the Court is not to determine whether the Eleventh
District Court of Appeals of Ohio’s decision was right or wrong. Instead, under the AEDPA, the
Court must decide whether the state appellate court’s adjudication of Petitioner’s claims
“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
4
(4:13CV0723)
established Federal law.” 28 U.S.C. § 2254(d)(1). As the United States Supreme Court has
explained:
an unreasonable application of federal law is different from an incorrect
application of federal law. Indeed, a federal habeas court may not issue the writ
simply because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or
incorrectly. Rather, that application must be objectively unreasonable. This
distinction creates a substantially higher threshold for obtaining relief than de
novo review. AEDPA thus imposes a highly deferential standard for evaluating
state-court rulings, and demands that state-court decisions be given the benefit of
the doubt.
Renico v. Lett, 559 U.S. 766, 773(2010) (internal citations and quotations omitted) (emphasis in
original).
Since Petitioner did not object to the magistrate judge’s finding that “[s]everal of the
grounds put forward by Urso allege violations of the Ohio Constitution” (ECF No. 11 at PageID
#: 1084), the Court need not, and will not review these portions of the Report. Jones v. Haas,
No. 13-12645, 2014 WL 7342302, at *2 (E.D. Mich. Dec. 23, 2014). In any case, the Court
agrees with the magistrate judge that “federal habeas corpus relief does not lie for errors of state
law,” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). ECF No. 11 at PageID #: 1085. And, as the
Supreme Court has repeatedly underscored, inquiry into issues of state law “is no part of a federal
court’s habeas review of a state conviction.” Estelle v. McGuire, 502 U.S. 62, 67 (1991).
1. Alleged Miranda Violations
The Self-Incrimination Clause of the Fifth Amendment provides that “[n]o person . . .
shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. AMEND.
V. In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that in order to protect
5
(4:13CV0723)
the privilege against compelled self-incrimination, a suspect “must be warned prior to any
questioning that he has the right to remain silent, that anything he says can be used against him in
a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any questioning if he so desires.” Id. at 479.
Post-Miranda decisions have clarified that the protections in that case are not confined to
instances of “express questioning.” Rhode Island v. Innis, 446 U.S. 291, 298-99 (1980).
In Pennsylvania v. Muniz, 496 U.S. 582 (1990), a patrol officer arrested a suspected
drunk driver and transported him to the central booking center. Another officer explained the
implied consent law and the consequences of refusal. The driver responded with questions and
comments about his state of inebriation. Id. at 585-86. The Supreme Court concluded that
“Miranda does not require suppression of the statements [the driver] made when asked to submit
to a breathalyzer examination.” Id. at 604. “We believe that [the driver’s] statements were not
prompted by an interrogation within the meaning of Miranda, and therefore the absence of
Miranda warnings does not require suppression of these statements at trial.” Id. at 605 (footnote
omitted). The officer’s statements “were necessarily ‘attendant to’ the legitimate police
procedure and were not likely to be perceived as calling for any incriminating response.” Id. at
605 (footnote and internal citation omitted).
Petitioner’s objection that “the Magistrate Judge clearly went well outside the actual
holding” in Muniz, ECF No. 14 at PageID #:1108, is unsupported and refuted by the facts and
state court record. Here, State Trooper Sexton testified that although Deputy Sheriff Carr had
6
(4:13CV0723)
already read to Petitioner BMV form 2255,2 she also explained to him the consequences of a
refusal to take the test. She then asked Petitioner if he would take the test, and he voluntarily
said, “I’ll take your test. I did it. I’m guilty so I’ll take it.” ECF No. 7-7 at PageID #: 837.
The first and second grounds do not warrant habeas relief because Petitioner’s case is
exactly on point with Muniz and the result should be the same. See, e.g., Aubrey v. Virga, No.
EDCV 12-822-JAK (AGR), 2015 WL 1932071, at *5-6 (C.D.Cal. April 27, 2015) (habeas
petitioner’s Miranda violation challenge to the admission of an unsolicited statement he made at
the jail about the breath chemical test lacked merit). The state court decision did not involve an
unreasonable application of clearly established federal law, as determined by the Supreme Court
of the United States.
2. Confrontation Clause Claim
Petitioner’s objections focus on Jack Beil’s—the 911 caller— availability at trial. ECF
No. 14 at PageID #: 1110-12. That issue, however, is not relevant to Confrontation Clause
analysis in this case.
The Sixth Amendment’s Confrontation Clause (binding on the states under the
Fourteenth Amendment) gives the accused “[i]n all criminal prosecutions, . . . the right . . . to be
confronted with the witnesses against him.” U.S. CONST. AMEND. VI. The Confrontation Clause
categorically prohibits the introduction of a certain class of out-of-court statements. Cf.
Crawford v. Washington, 541 U.S. 36, 54 (2004). There are two necessary and mutually
2
BMV Form 2255 “provides a person suspected of OVI of the consequences for
refusing to take a chemical alcohol test when requested.” Columbus v. Zimmerman, Nos.
14AP-963, 14AP-964, 2015 WL 5086367, at *1 (Ohio App. 10th Dist. Aug. 27, 2015).
7
(4:13CV0723)
sufficient conditions to identify whether an out-of-court statement implicates the protection of
the Confrontation Clause. See id. First, the statement must be testimonial. Id. Second, the
statement must be introduced for its truth. See id.
Davis v. Washington, 547 U.S. 813 (2006), presented the Supreme Court an opportunity
to elaborate on what constitutes a testimonial statement. Davis concerned the admission of a
recorded statement made to a 911 operator. Id. at 817. The Court carved an exception to its
ultimate holding in Crawford to mirror the emergency exception to Miranda announced in New
York v. Quarles, 467 U.S. 649, 658-59 (1984). The Davis Court held that when the totality of the
circumstances objectively indicates that the primary purpose of police interrogation is “to enable
police assistance to meet an ongoing emergency,” statements made in response are not
testimonial. 547 U.S. at 828.
The statements from the audio recording of Mr. Beil’s 911 call in the case at bar were not
testimonial or subject to Crawford requirements. Davis, 547 U.S. at 822-26; United States v.
Hayden, No. 13-3750, 2015 WL 2227694, at *3 (7th Cir. May 13, 2015) (“Like Davis, the 911
call at issue and statements to police were non-testimonial because their primary purpose was to
provide police officers with basic information to address an ongoing emergency.”); United States
v. Arnold, 486 F.3d 177, 187 (6th Cir. 2007) (en banc), cert. denied, 552 U.S. 1103 (2008).
Thus, the 911 caller’s availability at trial is not relevant to a Confrontation Clause analysis.
The state court decision regarding the admission of the 911 recording is in accord with
applicable Supreme Court precedent. The third ground, therefore, does not warrant habeas relief.
8
(4:13CV0723)
C. Petitioner’s Request for a Certificate of Appealablity (“COA”) (ECF No. 15)
As the Supreme Court has stated, “Congress mandates that a prisoner seeking
postconviction relief under 28 U.S.C. § 2254 has no automatic right to appeal a district court’s
denial or dismissal of the petition. Instead, petitioner must first seek and obtain a COA.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The relevant statutory provisions are codified at
28 U.S.C. § 2253, as amended by the AEDPA. Subsection (c) provides:
(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may
not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).
The Court must determine whether a certificate of appealability should be granted. A
certificate should issue if Petitioner has demonstrated “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To warrant a grant of the certificate, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Because reasonable jurists could not conclude that the Court’s decision denying Petitioner relief
on all of his claims is debatable or wrong, the Court concludes Petitioner is not entitled to a
9
(4:13CV0723)
certificate of appealability. Accordingly, Petitioner’s Request for a Certificate of Appealablity
(ECF No. 15) is denied.
IV. Conclusion
Petitioner’s Motion for the Substitution of Parties (ECF No. 13) is granted to substitute
LaShann Eppinger, Warden as the respondent.
Petitioner’s Objections (ECF No. 14) are overruled and the Report and Recommendation
(ECF No. 11) of the magistrate judge is adopted. Keith Urso’s Petition for a Writ of Habeas
Corpus is denied.
Petitioner’s Request for a Certificate of Appealablity (ECF No. 15) is denied. The Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken
in good faith, and that there is no basis upon which to issue a certificate of appealability. 28
U.S.C. § 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
September 9, 2015
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?